Pinterest is the latest social media flavor of the month/quarter/whatever. It has a slick interface, familiar functions, and celebrates things that users love which keeps people coming back. The user base is exploding and word of mouth is positive.

So is the news that Pinterest is secretly modifying user pins to capture unclaimed affiliate revenue going to bring the party to an end?

This is not the final destination you were looking for.

According to this blog post, when Pinterest users post a link to a product on a site that has an affiliate program (such as Amazon) the Pinterest utilizes a third party to modify the link. The newly modified link will now contain a referral code that gives the affiliate credit to some other entity, presumably Pinterest.

Let’s give Pinterest the benefit of the doubt and say that they aren’t removing affiliate links that users might be building in. Because that would be a whole different category of analysis. Instead, let’s assume that Pinterest is only adding these referrals to links that don’t have an affiliate code.

First, let’s be honest–that’s a brilliant revenue generation scheme. It’s frictionless to the ultimate user, painless to the content creators, and provides money to a platform people like using.

Second, let’s be honest again–it’s creepy. Mostly because it isn’t disclosed. It goes beyond the social media norm where we expect platforms to use our browsing and usage data to make money somehow. This isn’t making money off our activity, this is making money off our content. That feels different, even if it may be treated the same.

The site that Pinterest appears to use for this affiliate linking is skimlinks, whose terms recommend their partners to disclose the linking activity based on the FTC endorsement guidelines. The fact that Pinterest may now have an increased financial interest in some pins without disclosing the connection could have legal implications. Perhaps not now if Pinterest treats the pins the same as all others, but it could be an issue to users who provided links specifically without referral codes and the expectation that the links would be plain links to a site.

And such activity might also be in violation of Pinterest’s terms. Pinterest’s terms gives Cold Brew Labs (Pinterest’s creators) the right to “use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content…” That’s a broad list that probably includes modifying a non-affiliated link into an affiliated link.

However, in the Privacy policy section on Links to Other Sites, Pinterest states “The fact that we link to a website or present a banner ad or other type of advertisement is not an endorsement, authorization or representation of our affiliation with that third party…” Read one way, that could be true–if there’s a link to the Kindle version of Ready Player One with a user’s affiliate code then Pinterest has made no representation. But the same link and image could also be through the skimlink/Pinterest affiliate, and in that case there is an affiliation.

Technical analysis aside (although that’s a big one), the bigger factor is just that Pinterest missed an opportunity to tell its users what it was doing. Most people would be fine with it, would embrace the innovative way of funding a site they like. But doing so without telling users could lead to more questions.

If Pinterest is modifying our content now without telling us, what else will they do? Will users with numerous vanilla links that Pinterest can capture be preferred as one of the random boards new members automatically follow? Will the pins be preferred in searches? Can I opt out?

In some ways it feels like LinkedIn’s failed attempt to capture user’s profile information and make it automatically opt into social marketing. After that backlash, LinkedIn rolled back those plans. Will Pinterest come clean about their activities and will the users care?

Pinterest has a great opportunity to build on the relationship with their users by talking about their practice, clarifying their terms and privacy policy to account for these practices, and giving users the ability to opt out. The vast majority will be happy to have it continue and they will be reassured that their content is not being secretly modified for financial gain.

And by disclosing the practice they can capitalize on the brilliance while minimizing the creepy.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.